Bemis v. Horner

Mr. Justice Waterman delivered the opinion of the Court. The testimony given on behalf of appellant tends to establish only that appellant gave his note with the undeistanding that it was not to be used unless a certain concession was obtained from the Chinese government; that if such concession was obtained, then the note could be used, and appellant would receive a large amount of stock therefor. His negotiable promissory note ivas thus by him sent out into the world. In violation of the conditions under which he had intrusted his note to Miller, that person sold the same to appellees for value, they giving §3,500 cash and an indorsement of $1,500 upon Mitkiewicz’ account. In this State the well settled rule is that the indorsee of a promissory note before its maturity, taking it a§ payment or security for a pre-existing debt, is deemed a holder for a valuable consideration in the ordinary course of trade, and holds it free from latent defenses on the part of the maker. Mix v. National Bank, 91 Ill. 20-23; Worcester Bank v. Cheeney, 87 Ill. 602-608; Tiedeman on Commercial Paper, Secs. 164, 165; 1 Daniel on Neg. Insts., Secs. 829, 830; Manning v. McClure, 36 Ill. 490; Hancock v. Hodgson, 3 Scam. 329; McIntire v. Yates, 104 Ill. 491. Appellees, before taking the note, took the precaution to communicate with appellant respecting it. They asked him if it was all right. To this question, which he must have understood as indicating that they contemplated taking action upon the note as a valid, negotiable instrument, he replied, “ I gave Miller such a note,” • giving to appellees no warning that the instrument was not in all respects what upon its face it purported to be. Mr. Horner not only testifies that he had no notice that the note was not negotiable, but the burden of proof that the appellees had such notice, value having been given, was upon appellant. Comstock et al. v. Hannah, 141 Ill. 284-287; Tiedeman on Commercial Paper, Sec. 289. The evidence, newly discovered by appellant, was merely cumulative, and not conclusive. A new trial was properly refused for such ground. The judgment of the Superior Court is affirmed.